When most people think of elder law, they think about long term care planning or estate planning. I’d like to use this occasion to discuss one aspect of elder law that many people don’t consider but will affect everyone in some manner – decision-making capability and what happens when someone doesn’t have the capacity to make decisions for him or herself.

If proper advance planning has been done, powers of attorney for both finances and health care are in place to designate trusted individuals to handle financial and medical matters. As I have discussed in past posts, powers of attorney provide a flexible mechanism for managing the affairs of an incapacitated person. But that authority is limited in that a power of attorney can never be used to override the wishes of the individual who granted the authority.

So, if powers of attorney are not in place, or it becomes necessary to override the principal’s wishes in order to protect him or her, what options are available to give someone the powers needed to make decisions?

The appointment of a guardian or conservator by a court is the only means of authorizing someone to act on a person’s behalf if powers of attorney are not in place or if the authority granted under a power of attorney is insufficient to protect the incapacitated person. Guardianship requires that a court formally declare that the individual is incapable of making decisions for him or herself. Typically, a physician must complete a report that is provided to the court detailing the nature of the person’s condition and what protective measures the doctor believes are necessary. A court hearing is then held to determine who should serve as the guardian. If a power of attorney is in place, the court will typically appoint the person named in the power of attorney as the guardian or conservator. However, if you haven’t signed a power of attorney, the court can name whomever the judge sees fit to appoint, which is usually the person who has stepped forward to file the petition with the court.

Guardianship is, unfortunately, a very restrictive process. Once the courts declare that a person is incapacitated and in need of a guardian or conservator, most of that individual’s rights of self-determination are taken away. While many guardians work to involve the incapacitated person in decisions and take their wishes and opinions into account, a guardian is not required to do so. A person under full guardianship cannot vote, marry, or make simple purchases with a credit or debit card. In many cases, major decisions in the person’s life, such as buying and selling of real estate or moving to an assisted living community require court approval. Court accounting requirements, while an important oversight tool, can be unduly burdensome and an unnecessary intrusion into your private financial matters.

For many people, this level of control isn’t needed. They may only need some financial oversight or help with confusing and complicated medical decisions. Many attorneys and courts are advocating away from such a strict view of guardianship and are increasingly using protective proceedings to manage issues in a more limited manner. The concept of supported decision-making keeps as much autonomy as possible with the incapacitated individual, often granting the guardian or conservator only those powers necessary to address the problem at hand. While these more customized proceedings may lead to an increase in court involvement, when judges and attorneys are willing to think outside of the box, they can be very useful in allowing the incapacitated person to retain some measure of independence.

Designating your chosen advocates in powers of attorney is a critical step in ensuring that your wishes are met. But, should a guardianship or conservatorship become necessary, having the people you trust in control of the process and knowing that there are other, less restrictive options available can make the guardianship process work for you.